Labour Trafficking in Australia
‘Labour trafficking’ is a term used ‘fairly loosely to distinguish between those forms of trafficking in persons that involve exploitation of labour, as distinct from exploitation of prostitution’. The term is difficult to define as it may capture slavery-like situations of forced labour as well as instances of illegal and underpaid employment of foreign workers. A report published by the Department of Immigration in 2005 remarked that:
To this day, there have only been two prosecutions, including one conviction, involving charges relating to labour trafficking in Australia. A report published in 2010 suggests that 20% of AFP investigations and assessments involved allegations of exploitation in contexts other than the sex industry. Of the 193 persons referred to the Australian Government’s Support for Trafficked People Program between January 2004 and June 30, 2012, 37 individuals (or 19%) including 19 men and 18 women had been trafficked into ‘other industries’ outside the sex industry.
The only conviction for a case of labour trafficking recorded this far, is the case of Mr Diveye Trivedi who, sometime between 2007 and 2008, facilitated the travel of an Indian male to work as a chef in an Indian restaurant in Eastwood, NSW. Upon arrival in Australia, the victim was subjected to exploitative conditions in the restaurant, which included having to live in a storeroom at the rear of the restaurant, bathe in the kitchen, and work for approximately 12 hours a day, seven days a week for minimal pay and with only minimal and irregular rest periods. It is also alleged that the victim had limited access to his passport and was physically and mentally abused. Mr Trivedi also made threats against the victim and the victim's family.
The only other known prosecution for a case of labour trafficking involved very similar circumstances. An Indian restaurant owner residing in Glenbrook east of Sydney brought another man from southern India to Australia. In the arrangement between the two men, the alleged victim agreed to work 365 days a year, without payment for the first year, but that during this time the accused would provide money to the other man’s family each time he returned to India. The accused forged a signature to obtain a visa for his victim, later took away his passport, airline ticket, and other documents. The victim was forced to sleep on the floor, and was told that he would be deported if he complained to the authorities. He was forced to work seven days a week, sometimes for more than 15 hours a day. He never received any payment and there was no evidence to suggest that any money had ever been transferred to his family in India.
Many allegations of labour exploitation can be found in the Australian media and there have also been reports of debt bondage-type situations in which the workers involved are dependent on the support of their employer-sponsors. None of these instances, however, have resulted in criminal prosecutions. This may be due to a lack of evidence and failure to report cases to law enforcement agencies. Many situations of labour exploitation also do not meet the threshold the trafficking-related offences in Divisions 270 and 271 of the Criminal Code (Cth). This has led to calls for new offences, which were tabled in Parliament in 2011/12.
Industries such as agriculture, construction, hospitality, manufacturing, and nursing are frequently mentioned in the context of labour trafficking in Australia. What these industries have in common is that they are dependent on foreign workers as they often involve types of labour that Australians are unwilling to perform and positions that cannot be filled by the local labour market. The available information is by no means conclusive but highlights the vulnerability of foreign workers and provides examples of conduct that may be indicative of trafficking.
There have been long-standing allegations that a significant number of workers in Australia’s agricultural industry are thought to be working illegally. The seasonal nature of the work, whereby workers often move between properties depending on the crops to be picked or processed, coupled with the remote locations of the properties, are factors which contribute to the potential for exploitation in this industry. Instances of underpayment, poor accommodation, the use of threats and violence, as well as instances of sexual assault have been cited in the literature.
The construction industry has seen some rather extreme instances of exploitation that could fall within the bounds of labour trafficking. A very sever case involves a group of five men from the Cook Islands who were recruited and brought to Sydney to work. The men worked under an indentured labour-style agreement that lasted for two years. One of the men was subjected to extreme physical abuse by the employer over the 18 months he worked for him. At one stage, he was assaulted with a claw hammer, breaking his jaw and leaving him permanently blind in his right eye. The victim also had his passport confiscated by his employer, endured long working hours and was severely underpaid, receiving no more than AUD 50 a month. The employer was later convicted for inflicting grievous bodily harm and convicted to two years imprisonment. He was also ordered to pay AUD 136,018 to the victim and a further AUD 66,049 to another worker.
In the 2011 caseof Fair Work Ombudsman v Kentwood Industries Pty Ltd, five construction workers were recruited from China and brought to Perth on sponsored visas. Their employer demanded that each man pay between RMB 2,500–15,000 (approximately AUD 400–2,400) to be sponsored. When the men arrived in Australia they were paid less than AUD 3.00/hour and were required to work long hours. One of the workers was not paid for the first five months of his employment, another not for the first three months. The Federal Court later ordered the company to pay more than AUD 450,000 in wages and fines.
Apart from the prosecutions mentioned above, there are several other examples from the hospitality industry that could potentially amount to instances of labour trafficking. One example relates to exploitation of a group of eight chefs from the Philippines. One of them had paid a recruiter to organise visas for him and his wife to work in Australia. While the recruiter promised a salary of AUD 39,100 per annum, the contract fixed his wage at only AUD 29,182. The couple was also deceived about other aspects of their work: both were sent to Canberra instead of Sydney, they were made to work as kitchen-hands, not chefs, and forced to work a minimum of 60 hours a week. After making a complaint to the Department of Immigration, the man had his passport confiscated and was kidnapped by his employer with the intention of forcibly deporting him. It was also alleged that some of the other chefs were sold by their employer to other restaurants for amounts ranging from AUD 8,000 to 12,000. A subsequent investigation resulted in a prosecution by the Office of Workplace Services with significant fines imposed on the company and an order that compensation be paid to some of the workers.
A string of decisions by the Migration Review Tribunal provides further examples of exploitation in the hospitality industry, involving instances of poor working conditions, poor accommodation, overworking, low or lack of pay, refused access to personal belongings as well as harassment and physical abuse committed against foreign workers.
Among the reports and proceedings relating to exploitation of manufacturing workers in Australia is a case involving a group of 40 welders from the Philippines. Each of them paid AUD 3,000 to a Filipino recruitment agency to find them work with an Australian company. The welders were told at the time they would earn more than AUD 40,000 a year when, in fact, they later earned only about AUD 27,000. The workers were also overcharged for their accommodation and their employer threatened them with termination and deportation.
A similar case involving 20 Korean workers who were brought to Western Australia by a labour hire firm and substantially underpaid was reported by the Australian Manufacturing Workers Union in 2006. In another case, an Australian printing company recruited and sponsored the visa of four Chinese to work temporarily in Australia. Over a period of 12 months the men worked ‘extraordinarily long hours’, were accommodated in poor housing, and underpaid by a total of more than AUD 93,600. A court later imposed a penalty of over AUD 9,000 on the company director.
Several reports allude to the exploitation of foreign nurses in Australia. One instance saw the exploitation of six Indian nurses who were brought to Australia by a migration agent in 2005. Once they arrived, their recruitment agent told them that they had to pay an additional AUD 27,000 to stay in the country as well as AUD 1,000 per month after their placement. The nurses were also paid below award wages, and their families in India were threatened.
In 2007, government authorities investigated a national nursing agency for exploiting up to 30 Chinese nurses. The agency recruited the nurses to work up to 50 hours a week whilst paying them a flat weekly rate of AUD 300. It appears that the women came to Australia with the understanding they would receive training through clinical placements, and were granted Occupational Trainee (subclass 442) visas, which allow workplace-based training in Australia on a temporary basis. It turned out, however, that the nurses had to work ordinary shifts and were constantly threatened by the agency that the sponsorship of their visa would be cancelled.
Two other cases involve nurses recruited from the Philippines. In a 2008 case, three nurses had their wages withheld and endured a ‘succession of false promises and threats’, which, in the eyes of the court, amounted to a ‘conscious exploitation of [the] three very vulnerable workers’. In the other case, 10 women came to Australia in the belief the would work as nurses but were forced to work as cleaners, were not allowed to leave the house where they were accommodated, and received no pay for their labour.
|||F David, Labour Trafficking (2010) 5.|
|||DIMIA, Managing the Border: Immigration Compliance, 2004–05 edition (2005) 96.|
|||Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response 1 July 2011–30 June 2012 (2012) 22.|
|||F David, Labour Trafficking (2010) 16.|
|||Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response 1 July 2011–30 June 2012 (2012) 33.|
|||See further, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response 1 July 2010–30 June 2011 (2011) 16, 82–83; CDPP, Annual Report 2011–12 (2012) 73.|
|||R v Yogalingam Rasalingam (District Court of New South Wales, Judge Puckeridge, 10–11 October 2007); Fryer v Yoga Tandoori House Pty Limited  FMCA 288. See further, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009 (2009) 69; Attorney-General’s Department, Discussion Paper: The Criminal Justice Response to Slavery and People Trafficking (2011) 13 –.|
|||Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Cth).|
|||F David, Labour Trafficking (2010) 40, 41; DIMIA, Review of Illegal Workers in Australia (1999) 21.|
|||AAP, 'Boss who hit worker with hammer jailed', Nine News (online), 29 Nov 2007; 'Boss blinded me, tells worker', The Daily Telegraph (Sydney), 21 May 2007; F David, Labour Trafficking (2010) 30.|
|||Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) (2010) 201 IR 234; Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3)  FCA 579.|
ABC, ‘Guest worker program out of control, says ACTU’, ABC News Online, 16 Mar 2006; V Laurie & Brown, ‘Guest chef's beef ‘led to kidnapping attempt’', The Australian (Melbourne), 15 Mar 2006, 8; F David, Labour Trafficking (2010) 32.
|||Flattery v the Italian Eatery (t/as Zeffirelli's Pizza Restaurant) (2007) 163 IR 14; Mason v Harrington Corporation Ltd  FMCA 7.|
|||071636603  MRTA 33; Panwar, Dinesh Singh  MRTA 5981; Singh, Surinder  MRTA 5982.|
|||ABC, ‘Police alerted to worker exploitation claim’, ABC News Online, 17 Oct 2006; ABC Radio National, ‘Workers claim exploitation under skilled migration scheme’, The World Today, 17 Oct 2006 (K Scanlan).|
|||AMWU, Temporary Skilled Migration: A New Form of Indentured Servitude (2006) 31.|
|||Inspector Hortle v Aprint (Aust) Pty Ltd  FMCA 1547, –.|
|||ABC Radio National, 'Foreign nurses exploited, union says', The World Today, 19 Oct 2005 (J Limb).|
|||N McKenzie, 'Nurse agency faces claims', The Age (Melbourne), 31 Jan 2007; N McKenzie, 'Nightmare for nurses', The Age (Melbourne), 31 Jan 2007.|
|||Armstrong v Healthcare Recruiting Australia Pty Ltd (No 2)  FMCA 1050, , ; see also Armstrong v Healthcare Recruiting Australia Pty Ltd  FMCA 357.|
|||F David, Labour Trafficking (2010) 32.|